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Divorce and Islamic Law of Inheritance: a Comparative Analysis of the Position of Divorcee

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Divorce and Islamic Law of Inheritance: a Comparative Analysis of the Position of Divorcee International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186 Divorce and Islamic Law of Inheritance: A Comparative Analysis of the Position of Divorcee Dr. Muntaka Yahaya Aminu Department of Islamic Studies, Faculty of Arts and Islamic Studies, Usmanu Danfodiyo University, Sokoto, Nigeria Abstract: - Islam emphasizes on family maintenance. Divorce is Arabs say: nakaha'l-matru'l-'ard. Likewise when the trees are the worst profitable in Islam but it is allowed if life is hard for intermingled it is said: tanakahat'il-ashjar (Al-Sabuni, 1971). couples because of their conflicts. Islam advices divorce and Technically, nikah refers to cohabitation (mubasharat). In sometimes it is obligatory for a family is codified and detailed Shari`ahnikah refers to a contract. A contract means a knot or rules. Islam considered the rights and position of divorcee to a tie. As a woman and a man are tied together by a knot (of inheritance and provides some conditions and rules concerning it. This paper deals with three sections; first section, discusses wedding called the wedlock), hence nikah is also called issues such as meaning of marriage, divorce, its types, conditions `aqd(a contract) (Al-Sabuni, 1971). and others. Second section deals with inheritance such as pillars of inheritance, conditions, sources among others. In the third SECTION I section of the paper it highlights and analyses the position of divorcee in Islamic law of inheritance with emphasis to the views Meaning of Divorce of some scholars. The method used in the paper in data collection Divorce is dissolution of marriage contract by prescribed is analytical. formulae (Hussaini, 2005). In Islamic law it means the Keywords: Divorce, Islamic Law and Inheritance. separation which the husband wants as a matter of right (Doi,2007). It also means breaking of a bond; it is derived INTRODUCTION from al-Itlaq, which means to send or to leave (Hallaq, 2008). To dissolve a contract of marriage by a husband means he is In the name of Allah, most Gracious, Most Merciful. free in the exercise of its rights. He may, whenever he likes, Islamic law, the Shari’ah, is a way of life which the law-giver relinquish the marital rights obtained in exchange for the enjoins to all those who accept Islam to follow. The word dowry. Islam itself means a complete submission to the way of Allah Types of Divorce in all matters of life both in this world and the hereafter. Also Islam is a universal religion. It transcends all limits of colour, A divorce is either revocable or irrevocable arevocable creed and culture. It knows no geographical boundaries. As it divorce is one in which the husband is empowered to revoke is a complete code of life. A perfect code adaptable to the divorced during the waiting period (Iddah) in respective of mankind of all ages and situations. the consent of the wife (Hussaini, 2005). Islam has done justice to all kinds of human being where 0ne of the conditions of a revocable divorce is that the justice is necessary and applicable especially in the area of marriage should have been consummated, because a wife inheritance. Islam did justice to all; male, female weaker sexes divorced before consummation of marriage does not have and infants where all were allowed to inherit. observe the waiting period (Iddah) (Hussaini, 2005). Islamic Law is an all-embracing legal system that regulates In accordance with the saying of Allah in the Qur‟an where and guides the life and conduct of Muslims concerning their He says: rights and duties. The purpose of the law is to promote the O believers! When you marry the believing welfare of the people individually and collectively. Its basic women and then divorce them before you principles are justice, equality, liberty, and fraternity. From touch them, you are not entitled to reckon this background this paper attempts to explain the justice of for them an 'Iddah.... (Qur‟an, 33:49). Islam on the position of divorce in the field of Islamic law of inheritance. However a brief of explanation on marriage, Talaqba'in divorce in which the husband may only live again divorce, its types, conditions among others were provided in with his mutallaqah (divorcee) after he had contracted a new the paper. 'aqd al marriage with her subject to such conditions as prescribed by the Shari‟ah (Hussaini, 2005). DEFINITION OF NIKAH (MARRIAGE) IN ISLAM Talaqba'in are of two kinds: ba'in(irrevocable divorce - minor Literally, the word nikah means "to collect things". It is used degree) and ralaqba'inkubra (irrevocable divorce - major to connote the piercing or absorbing of a thing into another degree) (Hussaini, 2005). thing. When the water of rainfall absorbs into the earth the www.rsisinternational.org Page 33 International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186 As for talaqba'insughra, it is the talaq in which the mutalliq The wise advice of the Qur‟an is: (divorcer) and the mutallaqah(divorcee) may resume married Divorce is to be pronounced twice. Then life only after they have contracted an entirely new marriage. either keep them in kindness or release them Ta laqba'inkubra is a divorce where the marriage is fully and go in kindness (Qur‟an, 2:229). completely ended and 'the mutalliq and the mutallaqah may And in another verse Almighty Allah says: not remarry save if the mutallaqah has, by free of choice and natural events, married another man, lived with him naturally And the divorced women should keep and normallyas his wifeand by normal and natural events be themselves in waiting for three menstrual divorced by him or widowed byhim and stays out her required courses. And their husbands have a better 'iddah fully and completely (Hussaini, 2005). right to take them back during this period, if they desire reconciliation (Qur‟an, 2: 228). In an irrevocable divorce, the divorcer may not return to the divorced wife, who belongs to one of the following Another significant Qur‟anic injunction is that during the categories: period of waiting the women should not be sent away but should be retained, in the hope that living together might unite 1. A wife divorced before consummation, by consensus of all hearts, this will be indicated where Allah says: the schools. O Prophet, when you divorced women, 2. A wife who has been divorced thrice. There is consensus divorce them for their prescribed period, and here as well. calculate the period, and fear Allah, your 3. A divorcee through khul'. Some legists consider this form Lord. Do not turn them out of their homes, of divorce void and say that it is not a divorce at all. nor should they themselves leave; unless they commit an open indecency. And these 4. A menopausal divorcee, which observes that: She has no are the limits set by Allah. And who-so goes 'iddahand the rules applicable to a divorcee before beyond the limits of Allah; he indeed consummation apply to her as well. According to it, wrongs his own soul. You do not know that If you are in doubt concerning those of your Allah may, after this, bring about wives who have ceased menstruating, know reconciliation. So when they have reached thattheir waiting period is three months, and their prescribed period, retain them in (the same is the waiting period of) those kindness or release them in kindness who have not yet menstruated ...(Qur‟an, (Qur‟an, 65: 1, 2). 65:4.). Divorce is not permissible during the course of a menstrual 5. The Hanafis say: Valid seclusion (khalwah) with the wife, discharge. If divorce becomes a necessary, it should come even without consummation, requires the observance of during the period of purity. There are two reasons behind this 'iddah. But the divorcer is not entitled to return to her during injection (Maudoodi, 1941). the 'iddah, because here the divorce is irrevocable (Gurin, Firstly, during the course of menstrual discharge woman 1998). generally become glum and ill-tempered. Changes in their Conditions for Divorce body chemistry provoke them to do things which they would not. This is a medically proved fact. That explains why The husband is free to exercise the right to divorce in Islam disputes arising between husband and wife during the course but under some prescribed conditions, he has been placed of a menstrual discharge are not considered a sufficient under checks and limitations which permit him to use this ground for divorce. right only as a last resort. The verdict of the Qur‟an is that a man should do his best to pull on with his wife even though Secondly, during this period, the bodily contact, which is an he does not like her. Allah the Almighty says: important factor in the mutual attachment of the spouses, is suspended. This can breed estrangement between them. But Treat them (women) well, though you when the temporary barrier is no more, the serene intimacy of dislike them. May be you dislike a thing and conjugal relations is likely to brush off from the man‟s mind Allah has placed in it great good for you any lurking thoughts of separation; and the spouses are united (Qur‟an, 4:19). together, once again into an integral whole (Maudoodi, 1941). However, if it becomes impossible to pull on together, the It was on these grounds that the Prophet (peace be upon him) right to divorce can be exercised. But it should not be a head- disapproved of divorce during the course of menstrual long plunge.
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